European Unions Arms Control Regime and Arms Exports to China: Background and Legal Analysis
CRS Report for Congress
European Union’s Arms Control Regime
and Arms Exports to China:
Background and Legal Analysis
March 1, 2005
Richard F. Grimmett
Specialist in National Defense
Foreign Affairs, Defense, and Trade Division
Theresa Papademetriou
Senior Foreign Law Specialist
Directorate of Legal Research
The Law Library of Congress
Congressional Research Service ˜ The Library of Congress
European Union’s Arms Control Regime and Arms
Exports to China: Background and Legal Analysis
Summary
In recent months, discussions have been held within the European Union (EU)
on the question of lifting the embargo on arms exports to the People’s Republic of
China that was imposed on China on June 27, 1989. The prospect that the EU would
lift its embargo on arms exports to China has led to a number of on-going discussions
between EU member states and the United States government, which strongly
opposes such an action at this time on human rights and security issues grounds. Key
nations within the European Union, particularly France and Germany, strongly
support lifting of the embargo. And, the United Kingdom has advised the Bush
Administration that it will also support lifting the embargo when the subject is
formally addressed by the EU, most likely during the spring of 2005.
The Council of the EU has stated that if the arms embargo on China were to be
lifted, that action should not result in either a quantitative or qualitative increase in
EU arms exports to China. The United Kingdom has argued that it believes that the
European Union’s Code of Conduct on Arms Exports, while not legally binding on
EU members, with some enhancements, would provide a solid safeguard against
worrisome arms exports by EU states to the Chinese in the future.
The President and senior members of the Bush Administration have lobbied the
European Union to keep the arms embargo on China in place. Many Members of
Congress share the Bush Administration’s concerns about an end to the EU arms
embargo. On February 2, 2005, the House of Representatives passed H. Res. 57, a
resolution strongly urging the EU not to lift the embargo, by a vote of 411-3. Other
Congressional actions on the issue may be taken.
This report provides detailed background and legal analysis of the nature of the
current European Union embargo on arms exports to China. It also provides detailed
background on the European Union’s current Code of Conduct on Arms Exports. A
strengthened version of the Code would be one of the control mechanisms that would
remain should the EU lift the embargo on arms exports to China. This report also
gives information on recent EU arms exports authorized for China. It further
summarizes U.S. concerns regarding the lifting of the arms embargo, and notes the
prospective timing of EU action on the embargo issue. This report may be updated
should events warrant.
Contents
In troduction ..................................................1
General Background on European Union Embargoes..................2
European Union’s Arms Embargo on China.........................3
European Union’s Arms Exports Regime...........................5
European Union Code of Conduct on Arms Exports: Background
and Assessment...........................................6
Arms Exports Authorized for China by European Union Member States...8
United States Concerns .........................................9
Status of European Union Action................................11
Appendix 1
European Union Code Of Conduct On Arms Exports.................13
Appendix 2
Brief descriptions of EU Common Military List Categories............19
European Union’s Arms Control Regime and
Arms Exports to China: Background and
Legal Analysis
Introduction
In recent months, discussions have been held within the European Union (EU)
on the question of lifting the embargo on arms exports to the People’s Republic of
China that was imposed on China on June 27, 1989. Following the lead of the
United States, the European Union took this action in the wake of the June 4, 1989
crackdown on Chinese citizens by the Chinese military in Tiananmen Square in
Beijing and the serious infringement of human rights in China that followed. The
prospect that the EU would lift its embargo on arms exports to China has led to a
number of on-going discussions between EU member states and the United States.
The United States government continues to maintain its own arms embargo against
China and the U.S. strongly opposes lifting the EU embargo at this time on human
rights and security issues grounds. Key nations within the European Union,
particularly France and Germany, strongly support lifting of the embargo. And, the
United Kingdom has advised the Bush Administration that it will also support lifting
the embargo when the subject is formally addressed by the EU, most likely during the
early spring of 2005. All 25 members of the EU must agree before the arms embargo1
can be lifted.
The Chinese have been seeking a lifting of the arms embargo arguing that it is
discriminatory. They note that other nations deemed pariahs, such as Sudan or North
Korea, do not have such an embargo imposed on them. The Chinese also view lifting
of the embargo as an important symbolic political act by the EU, as they see the
embargo as a Cold War era relic, and thus an impediment to better relations with
European Union members. France, Germany, and other EU members claim the
embargo hinders stronger EU political and economic relations with China. After
their December 16 and 17, 2004 meeting, EU leaders pledged to address lifting the
1“Germany: Schroeder Calls for EU to End China Arms Embargo,” Dow Jones International
News, December 6, 2004; “France reiterates support for end to China arms embargo,”
Agence France Presse, December 6, 2004; “EU arms embargo on China probably lifted
within six months; Britain;” Associated Press, January 19, 2005; Barry Schweid, “Britain’s
Straw, Rice Differ on China Arms,” Associated Press, January 24, 2005. The French
Defense Minister, Michele Alliot-Marie, has argued that lifting the EU arms embargo
against China could be a beneficial step because “China is rapidly developing its industry,
and today our experts say in five years China could make exactly the same arms that we
have today. And they will do it if they cannot import. So maybe if we sell them arms, they
will not make them. And in five year’s time they will not have the technology to make
them.” Peter Spiegel and John Thornhill, “France urges end to China arms embargo,”
Financial Times, February 15, 2005.
embargo.2 The Council of the EU noted that if the arms embargo on China were to
be lifted, that action should not result in either a quantitative or qualitative increase
in EU arms exports to China.3 The United Kingdom has argued that it believes that
the European Union’s Code of Conduct on Arms Exports, while not legally binding,
would, with some enhancements, provide a solid safeguard against worrisome arms
exports by EU states to the Chinese in the future.4 Meanwhile, as the President and
Bush Administration officials have lobbied the European Union to keep the arms
embargo on China in place, many in Congress have also expressed strong concerns
and support for that position. On February 2, 2005, the House of Representatives
passed H. Res. 57, a resolution strongly urging the EU not to lift the embargo, by a
vote of 411-3. Other Congressional actions on the issue may be taken.
This report provides detailed background on the nature and history of the current
European Union embargo on arms exports to China. It also provides detailed
background on the European Union’s current Code of Conduct on Arms Exports.
The EU plans on issuing a strengthened Code, which would be one of the control
mechanisms that would remain should the EU lift the embargo on arms exports to
China. This report also gives information on the level of recent EU arms exports
authorized for China. It further summarizes U.S. concerns regarding the lifting of the
arms embargo, and notes the prospective timing of EU action on the embargo issue.
General Background on European Union Embargoes
Arms embargoes fall within the sanctions or restrictive measures imposed by
the European Union against third countries. In general, EU embargoes are either
adopted to implement UN Security Council resolutions acting under Chapter VII, or
are “autonomous.” In the latter case, embargoes are legally founded in a specific
provision of the treaties establishing the European Union. EU members have full
jurisdiction to decide on imposing arms trade restrictions.5 Prior to 1992, decisions
2Marcus Walker, Marc Champion and Scott Miller, “EU Maintains China Arms
Embargo–Pressure to Lift Ban Grows as States Risk Defying U.S. to Cultivate Economic
Ties,” Wall Street Journal Europe, December 9, 2004, p. A1; Daniel Dombey and Peter
Spiegel, “Why Europe is ready to lift its weapons ban on China,” Financial Times, February
9, 2005; Mure Dickie, Guy Dinmore, Daniel Dombay, Kathrin Hille, Demetri Sevastopulo
and Peter Spiegel, “The EU’s ban on selling military equipment to Beijing lacks credibility
but Washington believes any change would be irresponsible,” Financial Times, February
10, 2005; Peter Sparaco and Robert Wall, “Chinese Checkers; Widening business
opportunities drive EU’s review of China arms embargo,” Aviation Week & Space
Technology, December 13, 2004, p. 37.
3Council of the European Union, 16/17 December 2004. Presidency Conclusions.
4“Straw defends lifting of China arms ban,” Guardian Unlimited, January 21, 2005; Daniel
Dombey, “EU Finalizes plan to lift arms embargo on China,” Financial Times, February 3,
2005, p. 4. Marc Champion, “EU Aims to Calm U.S. Arms Fears–Officials say likely end
to Sales Embargo on China won’t increase imports,” Asian Wall Street Journal, February
5Article 296 of the Treaty Establishing the European Community. Available at
(continued...)
on embargoes were made by the member states through an informal political process,
the so-called European Political Cooperation.6 In several instances, member states
convened as a body, the European Council, adopted declarations to impose
embargoes.7 Within such a context, the embargo on China was imposed in 1989, by
the then twelve members of the European Community, the EU’s precursor. The
objective was to introduce arms trade restrictions against the regime in China in
reaction to the killing of demonstrators in Tiananmen Square.
The introduction of the Common Foreign and Security Policy (CFSP) by the
Treaty on European Union (Maastricht Treaty), effective in November 1993, altered
the procedural basis for EU embargoes. Decisions to impose an embargo still require
unanimity among EU member states, but such decisions are now based on Common
Positions, rather than declarations.8 Often, implementing regulations are also
adopted. Members are required to conform with the provisions or regulations and
Common Positions. Both instruments contain a detailed description of the type of
material covered as well as the terms and conditions of implementation by the
member states. Arms embargoes are also subject to EU standards on arms exports,
such as the 1998 Code of Conduct on Arms Exports (hereafter the EU Code).
Consequently, in the implementation of the arms embargo on China, EU members
are expected not only to abide by the restrictions on arms trade on China but also
with the EU requirements on arms exports. Ultimately, what a given embargo entails
may be viewed differently by different member states. And, as a political statement
by the European Union, the EU Code on Arms Exports is not legally binding on the
EU member states.
European Union’s Arms Embargo on China
On June 27, 1989 the European Council, convened in Madrid, agreed to impose
an arms embargo on China. The entire text of the embargo, which is in the form of
a political declaration, is rather brief. In the first two paragraphs, it condemns the
repression in China and requests that the Chinese authorities cease executions and
respect human rights. The fourth paragraph contains the measures agreed by the
members states. These include the suspension of military cooperation and high-level
contacts, reduction of cultural, scientific and technical cooperation programs and
prolongation of visas to Chinese students. The specific wording of the arms
restrictions on China calls for: “...interruption by the Member States of the
Community of military cooperation and an embargo on trade in arms with China.”9
5 (...continued)
[http://europa.eu.int/eur-l ex/lex/en/treaties/index.htm]
6It refers to the informal network of communication and cooperation on foreign policy issues
among the governments of the EC Member states, between the period of 1970-1992.
7External Relations, Common Foreign & Security Policy (CFSP), Sanctions. Available
at:[http://europa.eu.int/comm/ external_relations/sfcp/sanctions].
8Decisions are made based on articles 12 and 15 of the Treaty on European Union. Available
at [http://europa.eu.int/eurlex/lex/en/treaties/index.htm]
9Conclusions of the European Council, adopted in Madrid on June 27, 1989, available at
(continued...)
The declaration does not clarify the meaning of the term “military cooperation” nor
does it contain a list of arms that come within the scope of the phrase “trade in arms.”
Neither does it contain exceptions or review clauses. By contrast, other EU
embargoes imposed later in the CFSP context are more elaborate and specific in their
scope and coverage. For instance, the Burma/Myanmar embargo, which was first
adopted in 1991, has been updated and revised a number of times due to the lack of
progress in democratization and continuous violation of human rights, and appears
as a Common Position, which is binding. It contains, inter alia, a ban on technical
assistance related to military activities and the provision, maintenance and use of
weapons and ammunition, paramilitary equipment and spare parts.10
The arms embargo against China has not been interpreted uniformly by the EU
members since it was imposed. This has been attributed to several factors, including
lack of specificity in the political declaration, absence of a legally binding document,
such as a Common Position, as is the case with subsequent embargoes imposed on
other countries and, more importantly, the existing loopholes and weak points in the
EU arms control system. For instance, the UK interpreted the embargo in a narrow
manner, as to include the following items: lethal weapons such as machine guns,
large-caliber weapons, bombs, torpedoes and missiles; specially designed
components of the above, and ammunition; military aircraft and helicopters, vessels
of war, armored fighting vehicles and other weapons platforms; and equipment which
might be used for internal repression.11 The French have interpreted the embargo
similarly.12
Since 1989, European non-governmental organizations have reported that the
embargo on China has been bypassed by several EU members and has been reduced
to a mere “symbolic instrument.”13 One arms trade expert with the Stockholm
International Peace Research Institute (SIPRI) of Sweden has stated that “many
European licenses for the arms trade are actually issued for material which, on paper,
can be used for civilian purposes; what is known as ‘dual usage’… The embargo has
actually been circumvented in this way for years.”14 Amnesty International in its 2004
report, Undermining Global Security: the European Union Arms Exports, contains
several examples of EU members that have made exports to China within the
9 (...continued)
[ ht t p: / / www.eur uni on.or g/ l e gi sl at / Sanct i ons.ht m#Chi na] .
10Common Position 2004/423/CFSP and Council Regulation (EC) No. 798/2004 Renewing
the Restrictive Measures in Respect of Burma/Myanmar and repealing Regulation No.
11Robin Niblett, The United States, the European Union, and Lifting the Arms Embargo on
China, 10 EURO-FOCUS no. 3 (Sept 30, 2004). Center for Strategic and International
Studies. See also: Amnesty International. Undermining Global Security: The European
Union Exports, at [http://web.amnesty.org/library/index/engact300032004]
12EU arms embargo on China. [http://projects.sipri.se/expcon/euframe/euchiemb.htm]
13Thijs Papot, “‘A Symbolic Instrument’” the EU’s arms embargo against China,” Current
Affairs, January 25, 2005.
14Ib i d .
framework of the existing arms embargo.15 For instance, the United Kingdom
exported components for Chinese military aero engines as well as technology,
software and related systems for weapons platforms; an Italian joint venture company
was involved in the manufacture of vehicles reportedly used as mobile execution
chambers in China. In addition, the German Deutz AG diesel engines were
incorporated into armored personnel carriers that were transferred to China.16
European Union’s Arms Exports Regime
To place in context any potential actions European Union members may take
with respect to the Chinese arms embargo, it is important to understand the general
EU regime on arms export controls. The following EU instruments apply to arms
embargoes and arms exports in general: (1) the 1998 European Code of Conduct on
Arms Exports, a non-binding instrument, which lays down minimum standards to be
applied on export licenses17; (2) Regulation (EC) No 1334/2000 setting up a
Community Regime for the Control of Exports of dual-use items and technology;18
and (3) Common Position 2003/468/CFSP on the Control of Arms Brokering.19 The
EU Code of Conduct, analyzed in detail below, establishes eight criteria to be applied
by EU members on the exports of conventional arms, including software and
technology.20 A Common List of Military Equipment was agreed upon in 2000 and
updated recently.21 In general, arms embargoes, unless specific guidance is otherwise
provided, cover at least all the items included in the Common List.22 Regulation No
1334/2000 as amended (whose scope extends to any items that could be used for
civilian and military purposes) is directly applicable to the member states. Under its
provisions, member states grant authorizations for exports, called Community
general export authorization (CGE) of dual–use items. Such authorizations are valid
throughout the Community, subject to certain specific cases for which consultation
is needed among EU members prior to granting or denying an authorization. The
items and technology listed in Annexes I, II and IV of the Regulation are based on
15Amnesty International. Undermining Global Security: The European Union Exports.
Available at [http://web.amnesty.org/library/index/engact300032004]
16Press Release of Coalition of European NGOs including Saferworld, Oxfam, Pax Christi,
and Amnesty International: “Flimsy Controls Fail to Prevent EU Countries Selling Arms to
Human Rights Abusers.” September 30, 2004. The text of this document can be found at
[http://web.amnesty.org/library/inde x/ENGACT 300152004]
17Adopted by the Council of the European Union on June 8, 1998.
182000 O.J. (L159) 1
192003 O.J. (L156) 79
20Article XXI of GATT allows the imposition of trade restrictions on arms exports and
imports and military equipment and those imposed by the UN Charter VII resolutions.
21List included in the Council Declaration of June 13, 2000. It was issued on the occasion
of the adoption of the common list of military equipment covered by the EU Code of
Conduct on Arms Exports, 2000 O.J. (C 191).
22See Guidelines on Implementation and Evaluation of Restrictive Measures (Sanctions) in
the Framework of the EU Common Foreign and Security Policy, at 17, available at EU
Council Website, CFSP Section.
the lists prepared by the international export control regimes. The Regulation
includes a “catch-all” clause which allows controls on goods not included in the
Annex of the Regulation. Under this clause, EU members have the discretion to
impose or not to impose controls on exports and technology not listed in the
Regulation. The objective of Common Position, 2003/468/CFSP, is to control arms
brokering23 in order to prevent circumvention of UN, EU, or Organization for
Security and Co-Operation in Europe (OCSE) embargoes on arms exports and the
criteria established in the EU Code. Under its provisions, Member states are urged
to put in place legal norms for lawful brokering activities, including obtaining a
written authorization prior to engaging in arms brokering and to keep records for at
least 10 years.24
European Union Code of Conduct on Arms Exports:
Background and Assessment
The European Union (EU) Code of Conduct on Arms Exports was adopted on
June 8, 1998, during the Presidency of the United Kingdom.25 The EU Code sets up
eight criteria for the export of conventional arms and a denial notification procedure
obligating EU member states to consult on possible undercutting arms sales one EU
state might make even though another EU state has chosen not to make a comparable
arms export. Under this procedure, member states are required to transmit through
diplomatic channels information on licenses refused and reasons for the denial. Thus,
before a member state authorizes a license which has been refused by another
member state for the same transaction, it is necessary to consult the state that rejected
the license in the first place. If the member state decides to issue the license, it must26
inform the state that refused to grant authorization.
The EU Code’s eight criteria, which are to be utilized by EU members when
reviewing license requests and making decisions whether or not to make an arms
export, can be briefly summarized as follows:
(1) Consistency of export with the exporter’s international commitments arising
from UN, EU, or OSCE arms embargoes;
(2) Risk that export would be used for internal repression or where the recipient
country has engaged in serious violations of human rights;
(3) Risk that export would provoke or prolong armed conflicts;
(4) Risk of recipient using export to undermine regional peace and security;
(5) Effect of export on defense and national security interests of friends and allies;
23Regarding arms brokering, the Wassenaar Arrangement should be noted. In December
2003, a group of conventional arms exporting Member states agreed to establish national
legislation to control the activities of those engaged in the brokering of conventional arms.
[http://www.wassenaar.org/docs/]; See EU Common Position 2003/468/CFSP, adopted
June 8, 1998 by the Council of the European Union.
242003 O.J. (L156) 79
25The full text of the European Union Code of Conduct on Arms Exports is in Appendix 1.
26See Fourth Annual Report According to Operative Provision 8 of the European Union
Code of Conduct on Arms Exports, 2002 O.J. (C319) 1.
(6) Commitment of purchaser to fight terrorism and uphold international law;
(7) Risk of diversion to third parties or to a terrorist organization;
(8) Risk that export would undermine the sustainable development of the recipient
country.
It is important to emphasize that these eight criteria, and the EU Code on Arms
Exports in its entirety, are political statements by the European Union, and not legally
binding on the member states of the EU, although the Code is supposed to represent
a moral imperative that EU member states are expected to uphold and enforce.
Nevertheless, no matter how strong the language of purpose and intent contained in
the Code’s eight Criteria is, the 12 Operative Provisions of the EU Code–the sections
of the Code which set out the manner in which the Code is to be carried out–contain
significant loopholes which militate against it being a strong regime, in its current
form, for the control of conventional arms exports from EU member states. This
circumstance is illustrated by the following examples:
1. While each EU member state is to review export license applications made
to it on a “case-by-case basis” against the eight specific criteria in the EU Code,
Operative Provision 3 of the Code expressly states that “The decision to transfer or
deny the transfer of any item of military equipment will remain at the national
discretion of each Member State.” Thus, each EU member state is free to make an
arms sale based on its own determination regarding whether it is appropriate or not.27
2. Operative Provision 10 provides additional guidance to member states in
application of the EU Code. It states: “It is recognized that Member States, where
appropriate, may also take into account the effect of proposed exports on their
economic, social, commercial and industrial interests, but that these factors will not
affect the application of the above criteria.” A literal reading of that sentence could
mean that those who adopted the EU Code recognized that national economic or
commercial interests would weigh importantly in the decision-making process
regarding any given arms sale, and may even trump the larger stated EU-wide interest
in restricting problematic arms exports. Yet in the same sentence the provision
effectively states that while national economic self-interest may compel a member
state to sell, that state is expected not to do so to remain true to the principles of the
EU Code.
which requires that a confidential annual report is to be circulated by each EU
member state to the other EU states dealing with its defense exports and its own
implementation of the Code. These reports are to be discussed at an annual meeting
of the member states where the operation of the EU Code is reviewed, and any
“improvements” to it can be recommended to the EU Council. Subsequently, a
27Operative provision 6 of the EU Code states that the criteria in the Code and the
consultation procedure provided for in the Code shall apply to “dual-use goods as specified
in Annex 1 of Council Decision 94/942/CFSP as amended, where there are grounds for
believing that the end-user of such goods will be the armed forces or internal security forces
or similar entities in the recipient country.” As with sales of military equipment, the decision
to grant or not grant a license for the sale of “dual-use” equipment is left to each EU nation
to decide on its own.
public report is produced based on the submissions of individual EU members.
However, the complete details of actual arms exports made by EU states are not set
out in this public document, although the published annual reports made pursuant to
Operative Provision 8 of the Code do provide values of arms export licenses issued,
and values of deliveries made, if available, by the exporting country. A supplier list
is also provided, giving a total of sales denials made, but not what specific weapon
sale was denied, nor to whom. Individual states are free to give as much or as little
detail in their national reports as they choose. Most have taken a minimalist
approach. Furthermore, individual states have different arms trade licensing, data
collecting and reporting practices, thus calling into question the accuracy of some of
the data provided in the annual public report. In the most recent EU annual report on
the Code, the Sixth, covering calendar year 2003, categories of military systems are
indicated in the data tables. Yet this standardized reporting is still not universal
among member states, given the varied export licensing systems and practices
individual countries currently employ.28
Arms Exports Authorized for China by European Union
Member States
The European Union has published official documents which provide general
data regarding the total values of EU member states’ arms exports licenses to China.
Some countries provide the total values of actual exports. There is no uniformity in
this reporting across the membership of the EU. As noted above, these annual
reports are made pursuant to Operative Provision 8 of the EU Code. The most recent
two reports provide data for calendar years 2002 and 2003 (the Fifth and Sixth
reports respectively). What follows are the data from those reports for arms export
licenses for China as approved by named EU countries in rank order of their license29
values, together with the total license values of the European Union as a whole.
CY2002: Total value of export licenses approved for China (expressed in Euros):
France–105,431,246
United Kingdom–79,500,000
It aly–22,836,976
Austria–2,025,925
All European Union countries–209,794,157
CY2003: Total value of export licenses approved for China ( expressed in Euros)
France–171,530,641
It aly–127,128,192
United Kingdom–112,455,000
Czech Republic–3,610,819
28For details of individual EU member state arms data reporting practices see generally:
Sibylle Bauer and Mark Bromley. The European Union Code of Conduct on Arms Exports:
Improving the Annual Report. SIPRI Policy Paper No. 8. November, 2004. Stockholm
International Peace Research Institute, found at
[ h t t p : / / www.s i pr i .or g/ c ont e n t s / a r ms t r a d/ PP8]
292003 O.J. December 31, 2003 (C320) 9, 14, 30, 42. The Sixth report is found at Official
Journal C 316, December 21, 2004 pp. 001-215.
Germany–1,096,261
All European Union countries–415,820,913
In the Sixth annual report, made in accordance with Operative Provision 8, the
EU for the first time breaks down the export data by EU Common Military List
category.30 So, for those states whose licensing systems categorize their arms export
licenses in detail, it is possible to get a sense of what general types of military
equipment are being licensed. These data do not provide information on EU
members’ transactions involving dual-use equipment and items–and there is no
publicly available official source that provides details on such transactions. This EU
report does cover the broad spectrum of military equipment licensed for export by the
European Union of EU Common Military List categories. See Appendix 2 for a
detailed descriptive summary of these EU Military List categories. This descriptive
list uses an abbreviation scheme whereby a number is attached to a specific category
of military equipment, and this number/category is given in the license data table to
indicate the value of licenses granted for sales of that specific category. For example,
ML10 is: “‘Aircraft,’” unmanned airborne vehicles, aero-engines and “‘aircraft’”
equipment, related equipment and components, specially designed or modified for
military use.”
The United Kingdom provides no detailed breakdown of its licenses in the Sixth
report since the way its standard export licenses are valued in its licensing system
currently preclude this. The same is true for Italy, and the Czech Republic.
However, France and Germany are able to break down the categories of their licenses
for purposes of the EU report. The data in the report indicate that the largest share
of French license approvals for China in 2003 were in categories ML11– electronic
military equipment (98.5 million Euros), ML10–aircraft and related equipment (45.4
million Euros), and ML15–imaging or countermeasure military equipment (24.1
million Euros). In the case of Germany, its largest share of license approvals for
China in 2003 were in categories ML14–specialized military training equipment or
simulators (528 thousand Euros), ML11–electronic military equipment (433.1
thousand Euros), and ML21–software for items controlled in the EU Common
Military List (134.4 million Euros).
Thus, most of the arms exports authorized for China by EU members have been
made by France, the United Kingdom and Italy. The Czech Republic, Austria, and
Germany granted substantially smaller valued licence approvals.
United States Concerns
As the European Union has moved towards lifting the existing embargo on arms
exports to China in recent months, significant emphasis has been placed by some EU
members on the proposition that the European Union’s Code of Conduct on Arms
Exports, with additional modifications, would be a more effective control device than
the existing embargo on arms exports to China. At the same time, some EU
members have argued that ending the existing arms embargo on China would
acknowledge that some progress has been made in China since the 1989 Tiananmen
30Ib i d .
Square actions that originally led to the embargo. The U.S. Government, however,
remains skeptical that a strengthened EU Code would provide an effective deterrent
to increased arms sales to China.
The United States’ objections to the lifting of the European Union’s arms
embargo on China center on three major concerns. First, the United States is
concerned that China would use EU member state weapons or weapons technology
to enhance the capability of China’s military by providing them with items they could
not obtain elsewhere, including from their principal arms supplier, Russia, or from
other non-EU suppliers, such as Israel. Such items could include electronic warfare
equipment, command and control systems and technology, advanced communications
equipment, radar, sonar, avionics, and fire control systems. Advanced air-to-sea and
air-to-ground missiles might also be obtained. A number of the above items could
contain advanced, state-of-the-art technology which could be used to upgrade
existing Chinese air and naval weapons systems. Should China obtain high
technology items such as these from EU sources, the United States military operating
in Asia could face a notably increased threat from the Chinese military as they
conduct their operations in areas close to China and to Taiwan, a capability China has
been pursuing in recent years. Second, the United States is concerned that through
EU arms exports, China could secure sufficient enhancement of its military
equipment and capabilities that it could be emboldened to seriously threaten Taiwan
in its continuing dispute over Taiwan’s political status. Such an event could increase
Sino-U.S. tensions and increase the prospects of a military confrontation between the
two countries. Third, the United States believes that China has not seriously
addressed the human rights violations against its own people since the 1989
Tiananmen Square events, and therefore, the arms embargo should not be lifted until
significant steps to improve human rights in China have taken place.31
The President and senior Bush Administration officials have made such
arguments to the European Union membership. During Secretary of State
Condoleezza Rice’s European trip in February 2005, Secretary Rice stated, on
February 9, that with respect to the arms embargo, that “human rights concerns need
to be taken into consideration in any decision that was tied to Tiananmen,” noting
that the status of the 2,000 Tiananmen prisoners had not been resolved. She added
that she had “made clear our concerns about the military balance, the fact that there
are still American forces in that region, and about the need to be concerned about the
transfer of technology that might endanger in some way that very delicate military
31Robert J. Saiget, “China will upgrade technology if EU lifts arms embargo,” Agence
France Presse, December 15, 2004; Agence France Presse, December 17, 2004, “EU
leaders hint at June date for lifting China arms ban;” Joe McDonald, “End to European ban
could make little difference to China’s arms ambitions,” Associated Press, February 7, 2005;
John Rossant and Dexter Roberts, “An Arms Cornucopia for China? Europe will probably
lift its embargo, but companies will be careful what they sell,” Business Week, February 21,
New York Times, February 18, 2005, p. 9; Daniel Blumenthal and Thomas Donnelly,
“Feeding the Dragon, Hurting the Alliance,” Washington Post, February 20, 2005, p. B5.
balance.”32 The U.S. House of Representatives had earlier raised such concerns
through passage of H. Res. 57 on February 2, 2005, in which the House strongly
urged the EU not to lift the arms embargo on China. During his European trip, on
February 22, 2005, President Bush noted that “[T]here is deep concern that a transfer
of weapons [to EU states] would be a transfer of technology to China, which would
change the balance of relations between China and Taiwan....” The President stated
that European leaders had informed him that they could develop a “protocol” that
could address U.S. concerns. He added...”whether they can or not, we’ll see.” The
President also said that when the Europeans settled on the new code of conduct, they
would have to “sell it to the United States Congress.”33 Senator Richard Lugar,
Chairman of the Senate Foreign Relations Committee, in a press interview noted the
implications of not addressing Congressional concerns on the issue, reportedly
stating: “The technology the US shares with European allies could be in jeopardy if
allies were sharing that through these commercial sales with the Chinese.” He
further said that if the lifting of the EU arms embargo on China resulted in such a
diversion, he would support restrictions on sales of American arms technologies to
Europe. 34
Status of European Union Action
Based on the directive given to the Luxembourg Presidency of the EU during
the European Council meetings on December 16 and 17, 2004, the EU expects to
review a report on the issue of lifting the Chinese arms embargo during the first half
of 2005, and could address the matter as early as March 2005 at the meeting of the
European Council scheduled for that month. A formal EU decision is not expected
until May or June 2005. Since the European Council has already stated its “political
will to continue to work towards lifting the arms embargo,” the prospects of it doing
so when the issue is formally addressed are high.35 What is not clear, should the EU
lift the Chinese arms embargo, is what will be the nature and scope of “the revised
32Transcript of remarks by Secretary of State Condoleezza Rice at February 9, 2005 news
conference with European Commission President Jose Manuel Barroso. Federal Document
Clearing House. CIA Director Porter Goss and Vice-Admiral Lowell E. Jacoby, DIA
Director, in testimony before the Senate Select Committee on Intelligence on February 16,
2005 both took note of Chinese military modernization efforts, which they concluded were
affecting the military balance of power in the Taiwan Strait. This modernization effort, they
said, was improving the capabilities of China’s military to threaten U.S. forces in the region,
as well as its capability to take military action against Taiwan, should China choose to do
so. Statements at the committee’s website: [http://intelligence.senate.gov]
33[http://www.whitehouse.gov/news/releases/2005/02/print/20050222-3.html] gives text of
President Bush’s press conference of February 22, 2005 in Brussels at NATO headquarters;
Elisabeth Bumiller, “Bush Voices Concern on Plan to Lift China Arms Embargo,” New York
Times, February 22, 2005, p. A1, A10; For House debate on H.Res. 57 see Congressional
Record, February 2, 2005, pp. H299-H303 [daily edition]. The full text of H. Res. 57 is at
page H299.
34Edward Alden and Demetri Sevastopulo, “Lugar makes threat on EU arms sales to China,”
Financial Times, February 21, 2005.
35Council of the European Union, 16/17 December 2004. Presidency Conclusions.
Code of Conduct, and the new instrument on measures pertaining to arms exports to
post-embargo countries”–what is referred to by the EU as the “Toolbox.” The details
of any such changes to the Code of Conduct will not be known until the EU
announces them. Internal consultations among EU members on this question are
continuing. What is reasonably clear is that the issue of lifting the EU embargo on
Chinese arms has become a contentious issue in U.S–EU relations and could have
important implications for future cooperation between the U.S. and EU member
states in the military sphere, if the U.S. becomes convinced that military technology
shared with EU nations could end up being transferred to China in a post-embargo
period.
Appendix 1
European Union Code Of Conduct On Arms Exports
(adopted on 8 June 1998)
by36
COUNCIL OF THE EUROPEAN UNION
BUILDING on the Common Criteria agreed at the Luxembourg and Lisbon
European Councils in 1991 and 1992,
RECOGNIZING the special responsibility of arms exporting states,
DETERMINED to set high common standards which should be regarded as the
minimum for the management of, and restraint in, conventional arms transfers by all
Member States, and to strengthen the exchange of relevant information with a view
to achieving greater transparency,
DETERMINED to prevent the export of equipment which might be used for internal
repression or international aggression or contribute to regional instability,
WISHING within the framework of the Common Foreign and Security Policy
(CFSP) to reinforce cooperation and to promote convergence in the field of
conventional arms exports,
NOTING complementary measures taken against illicit transfers, in the form of the
EU Programme for Preventing and Combating Illicit Trafficking in Conventional
Arms,
ACKNOWLEDGING the wish of Member States to maintain a defence industry
as part of their industrial base as well as their defence effort,
RECOGNIZING that States have a right to transfer the means of self-defence,
consistent with the right of self-defence recognized by the UN Charter,
HAS DRAWN UP the following Code of Conduct together with Operative
Provisions:
CRITERION ONE
Respect for the international commitments of Member States, in particular the
sanctions decreed by the UN Security Council and those decreed by the
Community, agreements on non-proliferation and other subjects, as well as
other international obligations.
An export licence should be refused if approval would be inconsistent with, inter
alia:
36Source: Council of the European Union, European Union Code of Conduct on Arms
Exports, document 8675/2/98 Rev 2, Brussels, 5 June 1998.
(a)the international obligations of Member States and their commitments to enforce
UN, OSCE and EU arms embargoes;
(b) the international obligations of Member States under the Nuclear Non-
Proliferation Treaty, the Biological and Toxin Weapons Convention and the
Chemical Weapons Convention;
(c) the commitments of Member States in the framework of the Australia Group, the
Missile Technology Control Regime, the Nuclear Suppliers Group and the Wassenaar
Arrangement;
(d) the commitment of Member States not to export any form of anti-personnel
landmine.
CRITERION TWO
The respect of human rights in the country of final destination.
Having assessed the recipient country’s attitude towards relevant principles
established by international human rights instruments, Member States will:
(a)not issue an export licence if there is a clear risk that the proposed export might
be used for internal repression.
(b)exercise special caution and vigilance in issuing licences, on a case-by-case basis
and taking account of the nature of the equipment, to countries where serious
violations of human rights have been established by the competent bodies of the UN,
the Council of Europe or by the EU;
For these purposes, equipment which might be used for internal repression will
include, inter alia, equipment where there is evidence of the use of this or similar
equipment for internal repression by the proposed end-user, or where there is reason
to believe that the equipment will be diverted from its stated end-use or end-user and
used for internal repression. In line with paragraph 1 of the Operative Provisions of
this Code, the nature of the equipment will be considered carefully, particularly if it
is intended for internal security purposes. Internal repression includes, inter alia,
torture and other cruel, inhuman and degrading treatment or punishment, summary
or arbitrary executions, disappearances, arbitrary detentions and other major
violations of human rights and fundamental freedoms as set out in relevant
international human rights instruments, including the Universal Declaration on
Human Rights and the International Covenant on Civil and Political Rights.
CRITERION THREE
The internal situation in the country of final destination, as a function of the
existence of tensions or armed conflicts.
Member States will not allow exports which would provoke or prolong armed
conflicts or aggravate existing tensions or conflicts in the country of final destination.
CRITERION FOUR
Preservation of regional peace, security and stability.
Member States will not issue an export licence if there is a clear risk that the intended
recipient would use the proposed export aggressively against another country or to
assert by force a territorial claim.
When considering these risks, Member States will take into account inter alia:
(a)the existence or likelihood of armed conflict between the recipient and another
country;
(b)a claim against the territory of a neighboring country which the recipient has in the
past tried or threatened to pursue by means of force;
(c)whether the equipment would be likely to be used other than for the legitimate
national security and defence of the recipient;
(d)the need not to affect adversely regional stability in any significant way.
CRITERION FIVE
The national security of the Member States and of territories whose external
relations are the responsibility of a Member State, as well as that of friendly and
allied countries.
Member States will take into account:
(a)the potential effect of the proposed export on their defence and security interests
and those of friends, allies and other Member States, while recognizing that this
factor cannot affect consideration of the criteria on respect for human rights and on
regional peace, security and stability;
(b)the risk of use of the goods concerned against their forces or those of friends,
allies or other Member States;
(c)the risk of reverse engineering or unintended technology transfer.
CRITERION SIX
The behavior of the buyer country with regard to the international community,
as regards in particular its attitude to terrorism, the nature of its alliances and
respect for international law.
Member States will take into account inter alia the record of the buyer country with
regard to:
(a)its support or encouragement of terrorism and international organized crime;
(b)its compliance with its international commitments, in particular on the non-use of
force, including under international humanitarian law applicable to international and
non-international conflicts;
(c)its commitment to non-proliferation and other areas of arms control and
disarmament, in particular the signature, ratification and implementation of relevant
arms control and disarmament conventions referred to in point (b) of Criterion One.
CRITERION SEVEN
The existence of a risk that the equipment will be diverted within the buyer
country or re-exported under undesirable conditions.
In assessing the impact of the proposed export on the importing country and the risk
that exported goods might be diverted to an undesirable end-user, the following will
be considered:
(a)the legitimate defence and domestic security interests of the recipient country,
including any involvement in UN or other peace-keeping activity;
(b) the technical capability of the recipient country to use the equipment;
(c) the capability of the recipient country to exert effective export controls;
(d)the risk of the arms being re-exported or diverted to terrorist organizations (anti-
terrorist equipment would need particularly careful consideration in this context).
CRITERION EIGHT
The compatibility of the arms exports with the technical and economic capacity
of the recipient country, taking into account the desirability that states should
achieve their legitimate needs of security and defence with the least diversion for
armaments of human and economic resources.
Member States will take into account, in the light of information from relevant
sources such as UDP, World Bank, IMF and OECD reports, whether the proposed
export would seriously hamper the sustainable development of the recipient country.
They will consider in this context the recipient country’s relative levels of military
and social expenditure, taking into account also any EU or bilateral aid.
OPERATIVE PROVISIONS
1.Each Member State will assess export licence applications for military equipment
made to it on a case-by-case basis against the provisions of the Code of Conduct.
2. The Code of Conduct will not infringe on the right of Member States to operate
more restrictive national policies.
3. Member States will circulate through diplomatic channels details of licences
refused in accordance with the Code of Conduct for military equipment together with
an explanation of why the licence has been refused. The details to be notified are set
out in the form of a draft pro-forma set out in the Annex hereto. Before any Member
State grants a licence which has been denied by another Member State or States for
an essentially identical transaction within the last three years, it will first consult the
Member State or States which issued the denial(s). If following consultations, the
Member State nevertheless decides to grant a licence, it will notify the Member State
or States issuing the denial(s), giving a detailed explanation of its reasoning. The
decision to transfer or deny the transfer of any item of military equipment will remain
at the national discretion of each Member State. A denial of a licence is understood
to take place when the Member State has refused to authorize the actual sale or
physical export of the item of military equipment concerned, where a sale would
otherwise have come about, or the conclusion of the relevant contract. For these
purposes, a notifiable denial may, in accordance with national procedures, include
denial of permission to start negotiations or a negative response to a formal initial
enquiry about a specific order.
4. Member States will keep such denials and consultations confidential and not use
them for commercial advantage.
5. Member States will work for the early adoption of a common list of military
equipment covered by the Code of Conduct, based on similar national and
international lists. Until then, the Code of Conduct will operate on the basis of
national control lists incorporating where appropriate elements from relevant
international lists.
6. The criteria in the Code of Conduct and the consultation procedure provided for
by paragraph 3 of these Operative Provisions will also apply to dual-use goods as
specified in Annex 1 to Council Decision 94/942/CFSP (37), where there are grounds
for believing that the end-user of such goods will be the armed forces or internal
security forces or similar entities in the recipient country.
7. In order to maximize the efficiency of the Code of Conduct, Member States will
work within the framework of the CFSP to reinforce their cooperation and to
promote their convergence in the field of conventional arms exports.
8. Each Member State will circulate to other Member States in confidence an annual
report on its defence exports and on its implementation of the Code of Conduct.
These reports will be discussed at an annual meeting held within the framework of
the CFSP. The meeting will also review the operation of the Code of Conduct,
identify any improvements which need to be made and submit to the Council a
consolidated report, based on contributions from Member States.
9. Member States will, as appropriate, assess jointly through the CFSP framework
the situation of potential or actual recipients of arms exports from Member States,
in the light of the principles and criteria of the Code of Conduct.
10. It is recognized that Member States, where appropriate, may also take into
account the effect of proposed exports on their economic, social, commercial and
industrial interests, but that these factors will not affect the application of the above
criteria.
37(1)OF L 367, 31.12.1994, p. 8. Decision as last amended by Decision 98/232/CFSP (OJ
L 92, 25.3.1998, p. 1).
11. Member States will use their best endeavors to encourage other arms exporting
states to subscribe to the principles of the Code of Conduct.
12. The Code of Conduct and Operative Provisions will replace any previous
elaboration of the 1991 and 1992 Common Criteria.
ANNEX
Details to be notified
.......... [name of Member State] has the honor to inform partners of the following
denial under the EU Code of Conduct:
Destination country: ...............
Short description of equipment, including quantity and where
appropriate, technical specifications: ..............
Proposed consignee: ..............
Proposed end-user (if different): .................
Reason for refusal: ................
Date of denial: ..................
_________________________________________________________
Appendix 2
Brief descriptions of EU Common
Military List Categories38
ML1 Smooth-bore weapons with a caliber of less than 20 mm, other arms and
automatic weapons with a caliber of 12,7 mm (caliber 0,50 inches) or less and
accessories, and specially designed components therefor.
ML2 Smooth-bore weapons with a caliber of 20 mm or more, other weapons or
armament with a caliber greater than 12,7 mm (caliber 0,50 inches), projectors and
accessories, and specially designed components therefor.
ML3 Ammunition and fuze setting devices, and specially designed components
therefor.
ML4 Bombs, torpedoes, rockets, missiles, other explosive devices and charges and
related equipment and accessories, specially designed for military use, and specially
designed components therefor.
ML5 Fire control, and related alerting and warning equipment, and related systems,
test and alignment and countermeasure equipment, specially designed for military
use, and specially designed components and accessories therefor.
ML6 Ground vehicles and components.
ML7 Chemical or biological toxic agents, “tear gases”, radioactive materials, related
equipment, components, materials and “technology”
ML8 “Energetic materials”, and related substances.
ML9 Vessels of war, special naval equipment and accessories, and components
therefor, specially designed for military use.
ML10 “Aircraft”, unmanned airborne vehicles, aero-engines and “aircraft”
equipment, related equipment and components, specially designed or modified for
military use.
ML11 Electronic equipment, not controlled elsewhere on the EU Common Military
List, specially designed for military use and specially designed components therefor.
ML12 High velocity kinetic energy weapon systems and related equipment, and
specially designed components therefor.
ML13 Armored or protective equipment and constructions and components.
38 See OJ C 314 of December 23, 2003 for the full EU Common Military List. Sixth Annual
report according to Operative Provision 8 of the European Union Code of Conduct on Arms
Exports. Official Journal C 316, December 21, 2004 pp. 1-215.
ML14 Specialized equipment for military training or for simulating military
scenarios, simulators specially designed for training in the use of any firearm or
weapon controlled by ML1 or ML2, and specially designed components and
accessories therefor.
ML15 Imaging or countermeasure equipment, specially designed for military use,
and specially designed components and accessories therefor.
ML16 Forgings, castings and other unfinished products the use of which in a
controlled product is identifiable by material composition, geometry or function, and
which are specially designed for any products controlled by ML1 to ML4, ML6,
ML9, ML10, ML12 or ML19.
ML17 Miscellaneous equipment, materials and libraries, and specially designed
components therefor.
ML18 Equipment for the production of products referred to in the EU Common
Military List.
ML19 Directed energy weapon systems (DEW), related or countermeasure
equipment and test models, and specially designed components therefor.
ML20 Cryogenic and “superconductive” equipment, and specially designed
components and accessories therefor.
ML21 “Software” specially designed or modified for the “development”,
“production” “use” of equipment or materials controlled by the EU Common Military
List.
ML22 “Technology” for the “development”, “production” or “use” of items
controlled in the EU Common Military List, other than that “technology” controlled
in ML7.